Terms and Conditions for ForceManager Service

These general terms and conditions for the ForceManager Service (hereinafter referred to as the “Agreement” or the “Licence”) determine the applicable terms and conditions that Tritium Software, S.L. (hereinafter referred to as “Tritium Software”) is subject to, and that the company accepts to be bound to (hereinafter referred to as the “Customer”).

This Agreement shall be valid as of the date the Customer accepts the terms and conditions thereof as described below (hereinafter referred to as the “Valid Date of the Agreement”).

By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an order to purchase ForceManager services, the Customer accepts the following terms and conditions that govern the use of ForceManager’s on-line service, including the components for mobile, off-line or desktop devices, as these are defined in these general terms and conditions.

As part of the Licence, ForceManager will allow the use of an interface based on different desktop, tablet, web and mobile applications (hereinafter referred to as the “Software”), as well as data encryption, transmission, access and storage. By signing up or using the Software, the Customer is deemed to fully accept the terms and conditions of this Licence, along with ForceManager’s privacy policies included in http://forcemanager.net/info/privacy/.

The Service is offered in various editions and packaging in which the functions may differ significantly. Visit our website www.forcemanager.net to find out the differences between the various editions.

This Agreement was last updates on June 1st, 2017

DEFINITIONS

“Account Administration Area”:This means the online tool that Tritium Software provides to the Customer in order to manage the User Accounts, contract the Services, post the billing data for the Service and other tasks related to the administration of the Services.

“Administrator’s Account”: This means the administrative account provided to the Customer by Tritium Software in order to administer the Services. In order to use the Administrator’s Account a user name and password are required that Tritium Software will provide to the Customer.

“Amounts”: This means the amounts stated in the invoices sent to the Customer by Tritium Software for the Services, as described on the Order Page.

“Affiliate(s)” means, with respect to Tritium Software, and any corporation, firm, partnership or other entity controlled by Tritium Software. For the purposes of this definition, “control” means the ownership of at least 50% of the voting share capital of an entity or any other comparable equity or ownership interest.

“Confidential Information”: This means the information disclosed by one party to the other according to this Agreement and that is marked as confidential or would normally be considered confidential depending on the circumstances. The Customer’s Data is considered Confidential Information belonging to the Customer.

“Content”: This means the audiovisual information, documents, software, products and services included or made available to the Customer when using the Service.

“Customer’s Administrator”: This means the technical staff appointed by the Customer to administer the Services to Users in the name of the Customer.

“Customer’s Data”: This means any data owned by the Customer, including the e-mail provided, generated, transmitted or shown through the Services by the Customer or Users.

“E-mail address for notices”: This means the e-mail address assigned by the Customer to receive notices by e-mail from Tritium Software. The Customer may change this e-mail address by sending notice thereof to helpdesck@forcemanager.net.

“High-Risk Activities”: This means uses such as nuclear plant operation, air traffic control or vital support systems, in which an error in the Services could cause death, personal injuries or environmental damage.

“Initial Period for the Services”: This means the period of the applicable Services that begins on the Date the Service is first provided and will continue for the term specified in the Order Page.

“Intellectual and/or Industrial Property Rights”: This means any inventions, applications, patents, rights protecting logos, copyrights, trademarks, service marks, trade names, domain name rights, design rights, creation rights and other rights protecting trade secrets, as well as any other intellectual and industrial property rights related thereto and all forms of protection of a similar nature in any part of the world.

“Licence Period”: This means the period for which the Customer is granted a licence to use the Service according to the Order Pages.

“Order Page”. This means the order page that the Customer must complete when signing up for the Services containing (i) the requested Services plan (ii) the number of User Accounts (iii) the Amounts, and (iv) the applicable manner and term for payment.

“Service Pages”: This means the web pages displaying the Services to Users.

“Service Start Date”: This means the date Tritium Software activates the Services for the Customer.

“Service or Services”: This means the services of ForceManager provided by Tritium Software and used by the Customer by virtue of this Agreement. The Services include the components and functions described at the website http://www.forcemanager.net or any other similar URL that could be provided by Tritium Software.

“Suspension”: This means the immediate disabling of access to the Services or its components, as may be required, to prevent the subsequent use thereof.

“Technical Support Services”: This means the Technical Support Services provided by Tritium Software to the Customer’s Administrator and Users during the Valid Term.

"Technology": This means all the technologies owned by Tritium Software, among which are the following: software, hardware, products, processes, algorithms, Customer interfaces, know-how and procedures, techniques, designs and other tangible or intangible technical materials or information that are made available to the Customer when offering it the Service.

“Third Party Request”: This means any request made by a third party to access the records related to the use of the Services by a User. Third Party Requests may be a legal search order, a court order, a subpoena, and any other legal order or written consent provided by a User granting its permission to such disclosure.

“Trade Marks and Distinctive Signs”: This means the trade names, trademarks, service marks, logos, domain names and other elements of distinctive signs belonging to each party, respectively, protected by such party at all times.

“Urgent Security Incident”: This means (a) the use of the Services by the Customer that infringes the provisions in this Agreement and that could (i) interrupt the Services, (ii) interrupt the use of the Services by another customer or (iii) interrupt Tritium Software’s network or servers used to render the Services, or (b) unauthorised access to the Services by a third party.

“User Account”: This means the accounts hosted by Tritium Software and provided to the Customer’s Users through the Service so that such Users can use the Service.

“User or Users”: This means the persons the Customer allows to use the Services.

“Valid Term”: This means the Valid Term of the Agreement, which shall begin on the date it comes into force and will remain valid until (i) the expiry of the last valid period of the Services or until (ii) the cancelation of the Agreement pursuant to the contents of this document, whichever occurs first.

“Valid Term of the Services”: This means the Initial Period for the Services and all the renewal periods for the applicable Services.

CONCESSION OF THE LICENCE

By virtue of this Agreement, Tritium Software grants the Customer, which hereby accepts, a non-transferable and non-exclusive licence to use the Service throughou the world. The Customer may only use the Service for its own business and internal use, subject to the terms and conditions stipulated herein. All the rights not expressly granted in this Agreement shall remain reserved by Tritium Software and its distributors.

SERVICES

Description of the services

Tritium Software provides the Customer with a set of Services in order to manage its commercial sales force teams, as described in greater depth at the website http://www.forcemanager.net or any other similar URL that could be provided by Tritium Software.

The Customer must inform the User that information will be compiled in the Service based on the location of the User for certain functions of the Software. In this respect, Tritium Software will only share such information with the service providers required to provide these functions. The Customer, and if need be the User, may cancel this function at any time by editing the setting at a device level or by contacting Tritium Software.

By signing this Agreement, providing the Customer has previously accepted this by checking the relevant box, the Customer accepts to receive marketing information from Tritium Software from time to time along with messages related to other services that could possibly be rendered by Tritium Software.

The Customer may notify Tritium Software at any time by e-mail that it does not wish to receive such messages. Modifications Tritium Software may make any reasonable changes in the Services that it deems necessary. Tritium Software must notify the Customer beforehand if it makes any significant change to the Services.

OBLIGATIONS OF THE CUSTOMER

Fulfilment of the Agreement

By virtue of this agreement, the Customer undertakes to use the Service according to the terms and conditions included in this Agreement. Tritium Software may offer, as considered appropriate, additional applications, features or functions through the Service, the use of which may be subject to additional terms and conditions that must be accepted by the Customer.

Conditions of use and restrictions

The Customer must fulfil the terms and conditions for use and the restrictions on use of the Service specified by Tritium Software from time to time, including the following, but not limited thereto: (i) the technical and implementation requirements of Tritium Software; (ii) the guidelines for dealing with the Tritium Software trade mark for the Service; (iii) the terms of use and privacy policy posted on the website of ForceManager and (iv) Tritium Software’s data protection requirements.

Authorised use and restrictions in use

The Customer accepts to use the Service exclusively in accordance with applicable law, pursuant to this Agreement and any applicable policy or guideline. Similarly, the Customer also undertakes not to take part in any action that could interfere with the Service or the servers or networks connected to the Service or that could interrupt the Service. In addition to being governed by this Agreement, the use of certain specific services of Tritium Software by the Customer will also be governed by the specific policies and guidelines notified to the Customer when the latter signs up or accesses the services in question, being specifically included in this Agreement at the time of the Customer’s acceptance.

Unless Tritium Software specifically agrees otherwise in writing, the Customer may not take any of the actions described below. Similarly, it must make all its reasonable efforts to ensure that no third party carries them out either: (i) To change, show, adapt, translate, provide, distribute, prepare derived works, decompose, carry out reverse engineering, dismantle or attempt to obtain the source code for the Software; (ii) to publish, redistribute, sub-licence or sell the Software or any information or material related to the Software; (iii) to rent, lease or transfer its rights for the Software; (iv) to use the Software in any way that could damage, disable, overload or deteriorate it, nor may it use it in such a way as to interfere with the use and enjoyment of the Software by third parties; (v) to delete, conceal or alter any disclaimer of copyrights, trademarks or other disclaimers of property rights contained in the Software; (vi) to send spams or mass or junk mail that infringe applicable laws; (vii) to send or store illicit, obscene, threatening, defamatory, illegal or harmful materials, including material that is harmful to children or infringes the privacy rights of third parties; (viii) to send or store software materials containing virus, worms, Trojans or harmful codes, files, command sequences, IT agents or programmes; (ix) to interfere or harm the integrity or performance of the Service or the data contained therein; or (x) to attempt to obtain unauthorised access to the Service or the related systems or networks.

Administration of the Service by the Customer

The Customer will be given a user name and password for the purpose of administering the User Accounts. The Customer shall be responsible for keeping such password and account confidential, it must therefore assign the employees that will be granted authorisation to access the account and must limit the scope of such authorisation to carrying out the assigned tasks according to this Agreement and for all the actions carried out within the scope of the Customer’s account. The Customer accepts to immediately notify Tritium Software of any unauthorised use or access to the Service, the password or Customer’s account or any other kind of security infringement. Tritium Software shall not be held liable for any loss or damage caused by breach of the security commitments by the Customer. The Customer acknowledges and accepts that under no circumstances shall Tritium Software be held liable in any manner for any act or omission by the Customer or a User, including the damages of any kind caused by such acts or omissions.

User’s Consent

The Customer’s Administrator shall be authorised to access, supervise, use or disclose the data available to the Users in their accounts, the Customer being assigned as the controller of the Users’ data. The Customer guarantees that it is in a position to fulfil, and will fulfil, all the commitments related to its position as Controller, in particular and but not limited thereto, it undertakes to obtain the consent of the Users to allow (i) access, supervision, use or disclosure of such data by the Customer and so that Tritium Software can provide the Customer with the capacity to do so, and to allow (ii) the Service to be rendered by Tritium Software.

Unauthorised use

The Customer will make all reasonable efforts to prevent any unauthorised use of the Service or to cancel any such unauthorised use. The Customer will immediately inform Tritium Software of any unauthorised use or access to the Service that it may become aware of.

Conditions applicable to the User

The Customer acknowledges that it will be responsible for any activity taking place in its Customer account and that its Users shall be subject to the terms and conditions related to each of the components of the Service and to the agreement signed for these purposes between Tritium Software and the User (User Licence Agreement).

In the event that the Customer becomes aware of any infringement of the applicable terms and conditions for the Service or policy by a User, the Customer accepts (i) to notify this to Tritium Software as soon as possible, (ii) to immediately suspend or cancel the account of such User unless Tritium Software agrees otherwise in writing (even by e-mail). At the request of Tritium Software, the Customer will immediately suspend or cancel any User Account or access by the Administrator to the Service if there is any infringement of the applicable terms and conditions for use or policy by a User or Administrator. Tritium Software reserves the right, at its entire discretion, to suspend or cancel the User Account of any User.

Information and data of the account

Tritium Software does not own any information or material sent by the Customer to the Service during the use thereof. The Customer, and not Tritium Software, shall be the sole party responsible for the accuracy, quality, integrity, legality, reliability, suitability and Intellectual and/or Industrial Property Rights when using all the Customer’s Data and Tritium Software shall not be held liable for any deletion, accuracy, destruction, damage, loss or error caused while storing the Customer’s Data.

Whenever the Customer so requests at the time the Agreement is terminated, Tritium Software will provide the Customer with a file containing the Customer’s Data (owned by the Customer) within thirty (30) days after such termination.

Interaction with third parties
While using the Service, the Customer may share correspondence, acquire goods or services or take part in special offers of advertisers or sponsors that display their goods and/or services through the
Service.

Any of these activities and any condition, representation or warranty associated with such activities are solely carried out or provided between the Customer and such third parties. Tritium Software and its distributors shall hold no liability or obligation whatsoever related to such correspondence, acquisition or special offers between the Customer and such third parties.

Tritium Software does not support any Internet site that may be accessed through the Service. Tritium Software only offers these links to the Customer for its convenience and under no circumstances shall Tritium Software or its distributors be held liable for the content, products or other materials available through such links.

Tritium Software offers the Service to the Customer pursuant to the terms and conditions in this Agreement. However, the Customer accepts that other additional software, hardware or services providers may require the acceptance of the Customer for another different or additional licence or other terms and conditions before being able to use or access such software, hardware or services.

BILLING AND PAYMENT

Free trial periods

For the contracting in which initial free trial periods are offered, there will be no charge whatsoever while such free trial period lasts. No charge whatsoever will be made if the Customer decides to cancel the Service before the end of the trial period.

Payment All the payments must be made in Euros (EUR) unless specified otherwise on the Order Page. The Amounts billed must be paid at the beginning of the period when the Customer receives the Service and with the regularity agreed on the Order Page. The payment commitments may not be cancelled nor may the amounts already paid be reimbursed. The Customer is responsible for paying for all the User Licences requested for a whole Licence Period, whether such User Licences are actually being used or not.

Terms of payment

The Customer must pay the Amounts referred to on the Order Page for the Services by credit card. Tritium Software may allow other terms of payment in the future. Such other terms of payment may be subject to a series of additional terms and conditions that the Customer must accept before using them.

Bills Tritium Software will issue an on-line bill as receipt for payment of any order. These bills will be available and accessible from the Administration Area at http://forcemanagerbilling.recurly.com while the Customer has not cancelled the Service. The bills will be sent by e-mail to the Administrator’s e-mail address.

The Customer undertakes to provide full and precise billing information to Tritium Software. This information must include the company’s name, current account or credit card number (if need be), postal address, e-mail address, name and telephone number of an authorised contact person for billing purposes, intercommunity value added tax identification number (if any) and the Administrator’s data.

The Customer undertakes to update this information within a term of ten (10) days if there is any change in such data. If the contact information provided proves to be false or fraudulent, Tritium Software reserves the right to cancel access to the Service and adopt any other legal measure it deems appropriate.

If the Customer considers that its invoice is incorrect, it must contact Tritium Software or its distributor in writing within a maximum term of fifteen (15) days, counted from the date of such invoice, in order to obtain a credit or rectification.

Change in the number of licences

Any additional licences requested by the licence Administrator, by means of completing the relevant Order Page, shall be subject to the terms and conditions stated on such Order Page, otherwise they shall be subject to the contents of this Agreement. Moreover, the Customer may also reduce the number of licences for Users by sending written notification for such purpose to Tritium Software at least thirty (30) business days prior to the date of the bill for the following period.

Change in the Services Plan

If the Customer requests an upgrade of its current Services Plan through the Order Page, the relevant amount for such Upgrade will be that included on the Order Page and will be charged in proportion to the remaining Licence Period.

However, the Customer may not request a downgrade of its Services Plan during the Licence Period, which shall only be applicable once it has expired and must also be requested by sending written notification for such purpose to Tritium Software at least thirty (30) business days prior to the following License Period.

Fees for storing additional data

The storage space offered free of charge by Tritium Software to the Customer is 1GB in database and 500MB in documents for each User Licence of any edition or packaging of ForceManager.

If the disk storage quantity required by the Customer exceeds the limits specified in the previous paragraph, Tritium Software reserves the right to charge the Customer the storage fees in force at such time. Tritium Software will endeavour to inform the Customer, as far as possible, when the average storage space used by licence reaches approximately ninety per cent (90%); however, if Tritium Software fails to notify this situation, the Customer shall not be exonerated from its responsibility and obligation to pay the additional storage charges.

Tritium Software reserves the right to determine or modify its normal procedure and limits for storage of the Customer’s Data at any time. Tritium Software shall endeavour, as far as possible, to notify the Customer of these changes.

Default Tritium Software reserves the right to suspend or terminate this Agreement, and therefore access to the Service by the Customer, if there are any delays in payment.

The accounts with delays in payment are subject to monthly interest of 1.5% or the legal monetary interest rate approved by the Bank of Spain, whichever is lower from time to time, applicable to the outstanding balance, in addition to the expenses incurred in order to obtain payment. This interest may not be fractioned and one sole day of delay shall imply payment of all the interest.

The Customer will continue to be charged the amounts for the User Licences for any period of suspension due to default in payment. If the Customer or Tritium Software terminates this Agreement, the Customer must pay the outstanding balance in its account.

The Customer accepts that Tritium Software may charge the outstanding amounts to its credit card or its bank account. Tritium Software reserves the right to impose a reconnection fee if the Customer has been suspended and subsequently requests access to the Service.

TAXES

The Amounts referred to herein do not include taxes, rates or other similar charges of any kind including, but not limited thereto, value added tax, sale, use or withholding tax, determined by applicable law (hereinafter jointly referred to as the "Taxes"). The Customer shall be responsible for paying all the Taxes pursuant to the terms and conditions in this Agreement and may not make payments to Tritium Software for the Services with deductions of Taxes.

SUSPENSION OF THE SERVICE

Regarding Users Accounts by Tritium Software

In the case the Customer breaches the terms and conditions included in this Agreement and after a prior order has been sent by Tritium Software, the Customer fails to adopt the required measures for fulfilment within a term of ten (10) days, Tritium Software reserves the right to suspend the Services, notwithstanding the provisions in section 13 of this Agreement.

In addition, if Tritium Software becomes aware of any breach of the Agreement signed with the User, it may request that the Customer suspends the User Account in question. In the case that the Customer does not comply with such request made by Tritium Software, Tritium Software may carry out this suspension of the User Account. The duration of any Suspension by Tritium Software shall last until the User in question has remedied its breach of contract causing the Suspension.

Regarding Urgent Security Incidents

If there is any Urgent Security Incident, Tritium Software may automatically suspend the User Account or the Administrator’s Account. The Suspension shall have the minimum duration and scope required for the Urgent Security Incident to be prevented or terminated. If, for any reason, Tritium Software suspends a User Account without previously informing the Customer, Tritium Software will specify the reason for the Suspension to the Customer as soon as reasonably possible, if this is required by the latter.

NON-DISCLOSURE COMMITMENTS

Each of the parties (a) shall protect the Confidential Information of the other party with the same level of protection measures as it uses to protect its own Confidential Information and (b) shall not disclose the Confidential Information, except to its employees and representatives and only in the case this is necessary and they have accepted in writing to fulfil the non-disclosure commitments stipulated in this Agreement. Each of the parties (and all the employees and representatives to whom the Confidential Information is disclosed) must only use the Confidential Information in order to exercise their rights and fulfil the obligations stated in this Agreement and must adopt reasonable measures to protect it. Each of the parties is responsible for the actions of its employees and representatives who infringe the contents of this Section.

Exceptions

The Confidential Information does not include information that (a) is already known by the recipient, (b) is published with no responsibility of the recipient, (c) the recipient generates independently or (d) a third party legitimately transmits thereto.

Required disclosure

Each of the parties may disclose the Confidential Information of the other party when this is required by law, however, if the law so allows, only after (a) making all reasonable efforts to inform the other party and (b) the other party is offered the possibility to challenge such disclosure.

PUBLICITY

The Customer accepts not to make any kind of public announcement related to the existence or contents of this Agreement without the prior written authorisation of Tritium Software. Tritium Software may (i) include the Trade Marks and Distinctive Signs of the Customer in presentations, marketing materials and client lists, including but not limited thereto, client lists posted on the websites of Tritium Software and screen shots of the implementation of the Service for the Customer and (ii) issue a public announcement related to the existence or contents of this Agreement. At the request of the Customer, Tritium Software will provide it with a sample of such use or announcement.

INTELLECTUAL AND/OR INDUSTRIAL PROPERTY RIGHTS

Except for the provisions expressly included in this document, this Agreement does not guarantee either of the parties any right, whether implicit or not, for the contents or any Intellectual and/or Industrial Property Rights of the other party. In this respect, Tritium Software owns all the Intellectual and/or Industrial Property Rights for the Services.

Tritium Software and its licence providers shall be the proprietors of all rights, title and interest including, but not limited thereto, all the Intellectual and/or Industrial Property Rights (according to the definition provided below) related to the Service and any work or improvement obtained therefrom including, but not limited thereto, all software, technology, information, content, materials, guidelines and documentation. The Customer shall not acquire any rights, title or interest for the content, except the limited rights for use expressly specified in this Agreement. Any rights that are not expressly granted in this document shall be deemed as not authorised. Tritium Software is not the proprietor of the contents belonging to third parties used as part of the Service, including the contents of the notifications appearing in the Service. The title and Intellectual and/or Industrial Property Rights for the content that is accessed through the Service belong to the proprietor of the content in question and may be protected by intellectual property law or other applicable laws. The Customer accepts not to carry out, or allow others to carry out, the following actions: (i) to adapt, translate or modify the Software; (ii) decrypt, decompose, dismantle, apply reverse engineering or any other kinds in order to attempt to discover the source code or the Software objects, unless applicable laws prohibit such limitations; (iii) to copy the Software; (iv) to use the Service for High-Risk Activities or (v) to grant under licence, provide, sell, rent or lease the Service or any component thereof. Any source code of third parties included in each of the applications of the Service may only be used jointly with such application of the Service, the use of which will be subject to the terms and conditions contained in this Agreement.

IT IS PROHIBITED TO USE, COPY, TRANSFER OR MODIFY THE TECHNOLOGY OR ANY PART THEREOF (INCLUDING THE INTELLECTUAL AND/OR INDUSTRIAL PROPERTY RIGHTS THEREOF), EXCEPT IN THE CASES IN WHICH THIS AGREEMENT GRANTS EXPRESS PERMISSION FOR SUCH PURPOSE.

Trade Marks and Distinctive Signs

According to this Agreement, “Trade Marks and Distinctive Signs” shall be deemed to mean the trade names, trademarks, service marks, logos, domain names and other elements of the distinctive signs belonging to each party respectively, protected by such party at all times. Tritium Software may only display the Customer’s Trade Marks and Distinctive Signs that the latter has authorised and only in the areas allocated for such purpose on the Service Pages (the Customer must authorise their use at the time it uploads its trade mark elements to the Services). The Customer may specify the nature of this use from the Account Administration Area of the Service. Tritium Software may also display the Trade Marks and Distinctive Signs of Tritium Software on the Service Pages to indicate that the Services are provided by Tritium Software. Neither of the parties may display nor use the Trade Marks and Distinctive Signs of the other party apart from that permitted by virtue of this Agreement without the prior written consent of the other party. Except to the extent expressly specified in this Agreement, neither of the parties grants the other party, and the latter shall not acquire any right, title or interest including, but not limited thereto, any implicit licence, Trade Marks and Distinctive Signs of the former. All the rights that are not expressly granted by virtue of this document shall be considered as not authorised. Any use of the Trade Marks and Distinctive Signs of the Customer by Tritium Software shall be to the benefit of the Customer and any use of the Trade Marks and Distinctive Signs of Tritium Software by the Customer shall be to the benefit of Tritium Software. The Customer shall not infringe, nor assist others to infringe, the Trade Marks and Distinctive Signs of Tritium Software or the registration thereof, and neither may it attempt to register the Trade Marks and Distinctive Signs of Tritium Software or very similar domain names to those of Tritium Software that could result in misleading third parties.

Limitation in the use of Trade Marks and Distinctive Signs

The parties may revoke the right of the other party to use its Trade Marks and Distinctive Signs, pursuant to this Agreement, by means of written notification to the other party, which must immediately cease such use.

VALID TERM

Valid Term of the Agreement and the Services

This Agreement shall be valid for the whole Valid Term thereof. Tritium Software shall duly provide the Service to the Customer during the Valid Term.

Renewal and cancelation Upon expiry of the Valid Term, the Service shall be automatically renewed for the same period as the previous Valid Term. The renewal shall take place for the number of User Licences in force at the time at the same price as in the previous Valid Term, unless Tritium Software has notified the Customer in writing at least thirty (30) days beforehand of an increase in these Amounts. Similarly, the Customer may change the contracted capacities for the Service at any time using the Account Administration Area accessible from the Service with thirty (30) days prior notice.

Both parties agree that they may unilaterally adopt a decision, at any time and for any reason, not to continue with the automatic renewal of the Services once the Valid Term for the contracted Service has expired. The Customer shall notify this to Tritium Software by sending an e-mail to helpdesk@forcemanager.net. Similarly, the Customer may also reduce or increase the number of contracted Users by sending an e-mail to helpdesk@forcemanager.net.

Price adjustment

Tritium Software may adjust its prices for the following Valid Term of the Services by sending notification by e-mail to the Customer at least thirty (30) days prior to the start of the Valid Term of the Services for which it will apply the price adjustment.

Returns and proportional payments

Except for that expressly stated in this document, under no circumstances may the Valid Periods be divided proportionally and no amounts already paid by the Customer will be reimbursed.

TERMINATION OF THE AGREEMENT

Both parties may terminate this Agreement or reduce the number of User Licences by notifying this to the other party in writing at least thirty (30) business days prior to the date the invoice is issued for the following period. In all cases, the effect of such termination shall come into force once the Valid Period/s of the Licence/s at such time has/have expired.

In the case of free trial periods, the notifications issued through the Service to specify the number of days left of the free trial shall be deemed as notice of termination.

Any breach of the obligations undertaken by the Customer by virtue of this Agreement including, but not limited thereto, default in payment or unauthorised use of the technology, software, product or Service of Tritium Software, shall be deemed as a material breach of this Agreement. Tritium Software, at its own discretion, may suspend or cancel the Customer’s user name and password, account or use of the Service if the latter breaches this Agreement or fails to meet its terms and conditions.

Termination due to breach of contract

Each of the parties may suspend the Service or terminate this Agreement if (i) the other party significantly breaches this Agreement (as described in the previous paragraph) and such breach of contract is not remedied when thirty days have elapsed as of the receipt of written notification thereof, (ii) the other party closes down its business operations or is subject to insolvency proceedings and such proceedings are not dismissed within ninety days or (iii) the other party significantly breaches this Agreement more than twice, even though it remedies such breaches of contract.

Effects at the time of termination

In the case of termination of this Agreement, (i) the rights granted by one party to the other shall immediately be cancelled (unless stated otherwise in this Section), (ii) Tritium Software must provide the Customer with access to the Customer’s Data it owns and the possibility to request export thereof for a period of thirty (30) days and pursuant to the prices charged by Tritium Software at such time for the applicable Service, (iii) after a reasonable time, Tritium Software must delete the Customer’s Data, (iv) each of the parties must immediately make all their reasonable efforts to return or destroy any other Confidential Information of the other party, if the latter so requests, and (v) this shall not exonerate the Customer from payment of the outstanding Amounts owed to Tritium Software.

Similarly, Tritium Software may cancel a free account at any time at its entire discretion.

REPRESENTATIONS, WARRANTIES AND LIMITED LIABILITY

Representations and warranties

Each party states that it has the required legal standing to enter into this Agreement. Each party guarantees that it complies with all the laws and regulations applicable to rendering or using the Services, as may be appropriate. The Customer guarantees that it complies with all the laws, regulations and ordinances applicable or related to the use it makes of the Service and all the information provided to Tritium Software is true and accurate.

Limited warranties

TO THE EXTENT ALLOWED BY LAW, UNLESS EXPRESSED OTHERWISE IN THIS DOCUMENT, NEITHER OF THE PARTIES OFFERS ANY IMPLICIT OR EXPLICIT WARRANTY OF ANY KIND, WHETHER COMPULSORY OR OF ANY OTHER KIND INCLUDING, BUT NOT LIMITED THERETO, WARRANTIES TO COVER MERCHANTABILITY, SUITABILITY FOR A SPECIFIC USE AND NON-INFRINGEMENT. TRITIUM SOFTWARE SHALL NOT BE HELD LIABLE FOR THE CONTENTS OR THE INFORMATION THAT CAN BE ACCESSED THROUGH THE SERVICES.

THE CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT ANY OF THE SERVICES MAY CONTAIN ERRORS, DEFECTS AND OTHER PROBLEMS THAT COULD CAUSE A SYSTEM FAILURE. THEREFORE, THE SERVICE, INCLUDING ALL THE CONTENTS, SOFTWARE (INCLUDING ANY UPGRADE OR MODIFICATION THEREOF), FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE OR THAT ARE ACCESSED THROUGH THE SERVICE, AND ALL THE DOCUMENTATION RELATED THERETO, ARE PROVIDED “AS IS”, THEREFORE ALL USE MADE THEREOF SHALL BE UNDER THE CUSTOMER’S SOLE RESPONSIBILITY. TRITIUM SOFTWARE AND ITS LICENCE PROVIDERS DO NOT OFFER ANY COMPULSORY IMPLICIT OR EXPLICIT WARRANTY WHATSOEVER NOR OF ANY OTHER KIND INCLUDING, BUT NOT LIMITED THERETO, WARRANTIES FOR MERCHANTABILITY, SUITABILITY FOR A SPECIFIC USE AND NON-INFRINGEMENT. TRITIUM SOFTWARE DOES NOT ACCEPT ANY KIND OF LIABILITY RELATED TO THE CORRECT USE OF THE SERVICE. TRITIUM SOFTWARE AND ITS LICENCE PROVIDERS DO NOT ISSUE ANY REPRESENTATIONS RELATED TO ANY CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICE. TRITIUM SOFTWARE DOES NOT ISSUE ANY REPRESENTATIONS THAT TRITIUM SOFTWARE OR A THIRD PARTY WILL PUBLISH UPGRADES OR IMPROVEMENTS OF THE SERVICE. TRITIUM SOFTWARE DOES NOT GUARANTEE THAT THE FUNCTIONS INCLUDED IN THE SERVICE WILL NOT BE INTERRUPTED OR LACK ERRORS.

TECHNICAL SUPPORT SERVICES

The Customer and the Customer’s Administrator may contact the technical support service of the Service provided by Tritium Software by directly sending messages by e-mail to the following address: helpdesk@forcemanager.net

Tritium Software will deal with and reply to all incidents or queries by sending messages by e-mail to the e-mail address that the Customer has specified in its User Account.

COMPENSATION

The Customer must compensate Tritium Software and its branches, subsidiaries, companies in the group, providers, executives, shareholders, employees, collaborators and agents and hold them harmless for any claim or legal action filed by a third party related to (i) the Customer’s Data, (ii) an infringement by the Customer of the Intellectual and/or Industrial Property Rights of a third party or (iii) any use of the Services by the Customer or the User that infringes the terms and conditions for use stipulated in this Agreement.

The Customer must compensate Tritium Software for any claims related to a breach of contract arising from the combination of the Service with any other product, service, hardware or business process.

Under no circumstances shall Tritium Software hold any obligation or liability whatsoever, according to the provisions in this section, related to the (i) use of the Services or Elements of Tritium Software’s trade mark with modifications or in combination with other materials not provided by Tritium Software and (ii) the content, information or data provided by Tritium Software, Users or other third parties.

POSSIBLE INFRINGEMENT

Repair, replacement or alteration

If Tritium Software has reasonable suspicions that the Service infringes the Intellectual and/or Industrial Property Rights of a third party, Tritium Software (a) shall obtain the authorisation for use from such third party for the Customer, at the expense of Tritium Software, so that the Customer can continue using the Service, (b) will provide a functionally equivalent replacement that does not infringe such rights or (c) will alter the Service so that the infringement will not be repeated in the future.

Suspension or cancelation

If Tritium Software considers that the previous options are not reasonably possible, it may suspend or cancel the use of the Service in question. If Tritium Software cancels the Service in question, it must pay proportional reimbursement of the Amounts already paid that have not been used by the Customer that is applicable to the period after the cancelation of such Service.

LIMITED LIABILITY

TRITIUM SOFTWARE OR ITS LICENCE PROVIDERS SHALL NOT BE HELD LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED THERETO, DAMAGES CAUSED BY INTERRUPTION IN USE, LOSS OF DATA OR THE PRESENCE OF INACCURATE OR DAMAGED DATA, LOSS OF PROFITS OR EXPENSES FOR SUPPLIES FOR REPLACEMENT GOODS OR SERVICES, WHATEVER THE REASON MAY BE, INCLUDING, BUT NOT LIMITED THERETO, THE USE, MISUSE, INCAPACITY OF USE OR INTERRUPTED USE OR IN ANY SITUATION OF THEORETICAL LIABILITY INCLUDING, BUT NOT LIMITED THERETO, CONTRACTS OR GRIEVANCES, REGARDLESS OF WHETHER TRITIUM SOFTWARE KNOWS OR SHOULD HAVE KNOWN OR SHOULD HAVE PROVIDED A WARNING ABOUT THE POSSIBILITY OF THESE DAMAGES, APART FROM WHETHER ANY REMEDY SPECIFIED IN THIS AGREEMENT DOES NOT FULFIL ITS ESSENTIAL PURPOSE; OR ANY CLAIM THAT ALLEGES DAMAGES CAUSED BY ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SERVICE OR THE PROPERTIES THEREOF. THIS LIMITED LIABILITY SHALL NOT BE APPLICABLE TO THE LIABILITY FOR DEATH, PERSONAL INJURIES OR MISCONDUCT WHENEVER APPLICABLE LAW PROHIBITS THIS KIND OF LIMITATION.

Limited indirect liability

NEITHER OF THE PARTIES SHALL BE HELD LIABLE FOR LOSS OF INCOME OR ANY INDIRECT DAMAGES.

Maximumliability amounts

UNDER NO CIRCUMSTANCES SHALL TRITIUM SOFTWARE BE HELD LIABLE FOR PAYMENT OF AN AMOUNT HIGHER THAN THAT PAID BY THE CUSTOMER TO TRITIUM SOFTWARE, ACCORDING TO THE PROVISIONS IN THIS AGREEMENT, OVER SIX (6) MONTHS PRIOR TO THE EVENT RESULTING IN THE LIABILITY. TRITIUM SOFTWARE SHALL NOT GRANT ANY WARRANTY WHATSOEVER FOR THE USE OF SERVICES THAT ARE NOT SUBJECT TO CONSIDERATION OR FOR THE USE OF THE SERVICE DURING THE TRIAL PERIOD.

MISCELLANEOUS

Modification

Tritium Software reserves the right to change or modify any of the terms and conditions included in this Agreement as well as any policy governing the Service at any time by posting the new terms and conditions at http://www.forcemanager.net or any other URL that Tritium Software may provide. The Customer is responsible for regularly checking the possible updates of this Agreement. All the changes or modifications made to this Agreement shall be binding (i) if both parties accept them in writing, (ii) if the Customer accepts the update thereof online or (iii) if, once Tritium Software updates such terms and conditions, the Customer continues using the Service.

Notices

Tritium Software and the Customer agree to notify each other of any incidents that may arise during the valid term of the different services that could be contracted, preferably by e-mail prior to any other means of communication. Tritium Software’s e-mail for these notifications shall be helpdesk@forcemanager.net and the Customer’s e-mail shall be the one provided in the sign-up form for the service at web.forcemanager.net. The Customer undertakes to keep this e-mail operational and to change it in its private area if this is necessary in order to continue receiving notifications. In all cases, if there is any urgent problem or failure in the previous notification, these notifications must be provided by phone, fax, post, courier or any other suitable system for the purpose sought. Notwithstanding the foregoing, the preferential means of communication shall be e-mail and Tritium Software shall be exonerated from any kind of liability that could be caused by failure of the notification or error in the e-mail provided by the Customer. Each of the parties shall be responsible for keeping and storing copies of the notifications they send.

Assignment

The Customer may not assign or transfer its contractual position nor the rights and obligations accepted by virtue of this Agreement without the written consent of Tritium Software and must, in all cases, fulfil the following: (a) the beneficiary must accept in writing to undertake the terms and conditions of this Agreement and (b) the party that makes the assignment must continue being responsible for the obligations undertaken by virtue of this Agreement prior to such assignment. Any other attempt at assignment shall be considered fully lawfully null and void.

Tritium Software shall have the right to cause any of its Affiliates to perform any of its obligations pursuant to this Agreement, and Client shall accept such performance as if it were performance by Tritium Software.

Force majeure

Neither of the parties shall be held liable for breaching the obligations stipulated in this Agreement whenever this is caused by a situation beyond the reasonable control of the other party such as, for example, natural disasters, acts of war or terrorism, uprisings, labour disputes, actions by the government and Internet failures.

Waiver of rights

If any of the provisions in this Agreement is not exercised, this shall not be deemed as a waiver thereof.

Severability

If any provision in this Agreement is considered inapplicable, the other provisions in the Agreement shall remain fully in force.

Non-existence of representation

The contracting parties are independent and this Agreement does not imply any representation, association or joint venture.

Applicablelaw

This Agreement shall be exclusively governed by Spanish law. The parties
accept that any dispute that may arise related to this Agreement must
be solely and exclusively settled by the jurisdiction of Barcelona,
Spain, unless the law imposes another jurisdiction.

Amendments

Any amendments must be drawn up in writing and expressly specify that it is an amendment of this Agreement.

Validity

The following sections shall remain in force after the expiry or cancelation of this Agreement: 4, 5, 8, 10, 13 and 17.

Entire Agreement

This Agreement and all the documents mentioned herein imply the entire agreement reached by the parties related to the subject-matter thereof and shall replace any prior or current agreements on such subject-matter. The terms and conditions posted on a URL that is referred to in this Agreement shall be included in this document by means of such reference.

Interpretation of disputed conditions

If any discrepancy arises between the documents included in this Agreement, the hierarchy of the documents shall be as follows: the Order Page, the Agreement and the terms and conditions posted on the URL provided. If the Customer signs a physical agreement with Tritium Software to receive the Services, such agreement shall replace this Agreement.Duplicate The parties may sign this Agreement in two counterparts, including fax, PDF or other electronic copies, which shall jointly form one sole agreement.

PRIVACY POLICY

The Customer states that it has been informed and will observe the privacy policy of ForceManager at all times, which can be accessed at any time on the web page http://forcemanager.net/info/privacy/. Tritium Software reserves the right to change its privacy policy, at its entire discretion, whenever it considers this is necessary.

Personal Data Protection

Any data requested in the sign-up forms refer to the contact data of the person authorised by the Customer and for its Business to Business use by Tritium Software, the processing of such information is excluded from the scope of application of the data protection regulations, by virtue of the provisions in Article 2.2. of the Regulation developing the Spanish Organic Act 15 of 13 December 1999, approved by Royal Decree 1720 of 21 December 2007 (hereinafter referred to as the “Regulation”). Nevertheless, in the possible case that in an incidental or accessory manner personal data are provided by means of accepting this Agreement, the Customer consents to such information being processed for the development, maintenance and control of the legal relationship with Tritium Software.

Tritium Software, in its position as data controller, accepts that the Customer may exercise its rights to access, rectify, delete or oppose the data, according to the terms and conditions in the applicable regulations, at the following address: c/ Josep Irla i Bosch, 1-3, 08034 Barcelona, Spain.

Processing personal data on behalf of the Customer

In order to render the Services, if it is indispensable for Tritium Software to access and process the personal data owned and/or under the responsibility of the Customer (hereinafter referred to as the “Data”), Tritium Software states it is aware of the obligations set forth in Article 12 of the Spanish Organic Data Protection Act 15 of 13 December 1999 (hereinafter referred to as the “LOPD”) and its developing regulations and undertakes to fulfil them. Therefore, pursuant to the provisions in the aforementioned article, access by Tritium Software to the Data under the responsibility of the Customer in order to render the Services shall not be considered notification or assignment of Data according to the provisions in Article 11 of the LOPD.

The Customer shall be the sole data controller according to the provisions in the law in force. Under no circumstances shall the terms and conditions stipulated in this Agreement imply a delegation of the duties it holds in its position as data controller. In this respect, the Customer states, represents and guarantees that it has fulfilled all the obligations stipulated in the LOPD and its developing regulations that it must fulfil in its position as data controller of the Data the processing of which is assigned to Tritium Software at the time the Services are rendered.

In compliance with the provisions in Article 12 of the LOPD, when Tritium Software acts as data processor, it undertakes:

- To solely and exclusively process the Data it accesses in order to provide the Services and, in any other case, pursuant to the instructions that may be provided by the Customer.Not to use the Data for any other purpose or disclose them to any third party whatsoever, not even for the purpose of their storage, unless such assignment has been previously and expressly authorised in writing by the Customer. Tritium Software shall not be held liable when there are prior express instructions from the Customer to receive or disclose the personal data to a third party, either due to rendering the Services or once they have been completed.

- Once the agreement has been terminated, as instructed by the Customer, Tritium Software must destroy or return the Data it had accessed, in the format they may be at such time, to the Customer or the person expressly appointed thereby. The Data shall not be destroyed when there is a provision related to the applicable legal regulations that requires they are kept, in such case Tritium Software will return the Data to the Customer. Tritium Software shall only keep Data, duly blocked, if they could lead to liabilities in its relationship with the Customer.

- To adopt the required technical and organisational measures to guarantee the security, confidentiality and integrity of the personal data and avoid their alteration, loss, unauthorised processing or access pursuant to the provisions in the developing regulations of the LOPD, approved by Royal Decree 1720 of 21 December 2007 (hereinafter referred to as the “Regulations”), bearing in mind the state of the art, the kind of Data and the risks they could be exposed to. In particular, Tritium Software states it has effectively adopted the relevant security measures at a basic level referred to in the aforementioned regulations.

According to the provisions in Article 21 of the Regulations, Tritum Software cannot partially or fully outsource the Services to third parties in the name of the Customer, if such outsourcing implies access by the subcontractor to the Data under the responsibility of the Customer, unless prior written authorisation is granted by the Customer.

However, the Services may be outsourced without needing the Customer’s authorisation providing:

a) Prior to contracting the services, Tritium Software notifies the Customer of the name and services to be outsourced. For such purpose, the Customer expressly authorises Tritium Software to outsource the following Services:

b) Tritium Software and the sub-contractor company sign an agreement, according to the terms and conditions in this document, expressly specifying that, in all cases, the sub-contractor will abide by the instructions given by the file manager.

Unless written authorisation is granted by Tritium Software, when using the Services, the Customer must not compile personal data of third parties that imply, according to the terms and conditions in the regulations, the need to implement medium or high security measures in order to process the Data.

Both parties undertake to hold the other party harmless from any kind of damage, harm, expenses and/or penalties of any kind, in particular, those resulting from any sanctioning action filed by the Spanish Data Protection Agency, due to breaching their respective obligations and warranties undertaken by virtue of this Agreement and failure to observe the obligations that, in their respective positions as data controller and data processor may be claimed pursuant to the Personal Data Protection regulations.